In Re Rogers Minors ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re ROGERS, Minors. November 3, 2022
No. 360160
St. Clair Circuit Court
Family Division
LC No. 21-000138-NA
Before: LETICA, P.J., and SERVITTO and HOOD, JJ.
PER CURIAM.
Respondent appeals as of right the trial court’s order terminating his parental rights to the
minor children, ETR and JMR, pursuant to MCL 712A.19b(3)(b)(i) (parent caused physical injury
or sexual abuse), (g) (failure to provide proper care or custody), (j) (reasonable likelihood of harm),
and (k)(ii) (parent abused a child or sibling and the abuse included criminal sexual conduct). We
vacate the trial court’s order terminating respondent’s parental rights and remand for further
proceedings consistent with this opinion.1
I. BASIC FACTS AND PROCEDURAL HISTORY
Respondent and his wife, the mother of the couple’s four children, were married for over
24 years. When their divorce was finalized in 2020, the couple had two adult sons and two minor
daughters, ETR and JMR. The minor daughters lived with their mother and initially visited with
respondent. The minors did not have overnight visits with respondent purportedly because he did
not have beds for them.
In 2021, ETR disclosed that she was sexually abused by respondent between 2016 and
2019. She alleged that respondent committed improper acts at the family dinner table and that she
woke up to being violated by respondent. It was submitted that ETR had medical and emotional
conditions that were exacerbated during the alleged period of abuse. Additionally, when ETR
attended a school at which respondent was both a teacher and a coach, her symptoms increased to
1
Because ETR has since reached the age of 18, proceedings on remand only pertain to
respondent’s parental rights to JMR.
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such an extent that she transferred to a different school. After ETR disclosed her abuse, her mother,
now divorced from respondent, alleged that she was forced into a sexual act by respondent in the
bathroom when ETR and JMR were on the other side of the door asking questions.
Respondent was interviewed by the police as a result of the allegations. He denied
committing any sexual acts with ETR. But respondent did admit to forcing himself on his wife
during their marriage. On August 31, 2021, felony charges were filed against respondent arising
from the allegations raised by ETR and her mother, his now ex-wife.2
On November 9, 2021, a third amended petition was filed seeking the termination of
respondent’s parental rights. Respondent initially requested a jury determine jurisdiction.
However, after being apprised of the contents of the third amended petition, respondent pleaded
no contest. It was noted that respondent pleaded no contest to the amended petition because of the
criminal charges pending against him. Therefore, the parties stipulated to the use of the petition
for the factual basis to support the assumption of jurisdiction. The referee addressed respondent,
stating:
Okay. And, then, having reviewed the amended petition, I do find it is a
sufficient factual basis. As [counsel for petitioner] put on the record earlier,
[respondent], you are entering a no contest plea. The Judge wanted it to be clear,
though, that is indicating that you are not contesting that the allegations are true and
can be used in a later proceeding, which is also indicated on the pretrial plea of no
contest form, do you understand that, sir?
Respondent agreed that he understood. The referee found that respondent’s plea was
“knowingly, understandably and voluntarily made and that it is an accurate plea.” It accepted the
plea and jurisdiction over the minors.
On January 12, 2022, a dispositional hearing was held. Apparently, respondent believed
that the hearing would address the proofs to support the statutory grounds for termination of his
parental rights. Respondent’s counsel requested that the hearing be adjourned to allow the criminal
case to be resolved first. Alternatively, she sought to bifurcate the proceedings by allowing the
petitioner to present its proofs and hold respondent’s case in abeyance to preserve his Fifth
Amendment rights in light of the pending criminal matter. Counsel for petitioner opposed the
request, concluding that the no contest plea rendered the criminal case irrelevant. Apparently,
petitioner concluded that the facts underlying the grounds for the no contest plea were all that was
needed to be considered “for the best interest hearing.” Respondent’s counsel argued that
respondent pleaded no contest “to the existence of allegations, not that these acts occurred.”
The trial court refused to consider the distinction raised by respondent, stating:
No, no, no, no, no. He doesn’t get it both ways. He acknowledged-he pled
no contest specifically that these allegations would be considered as true by the
Court. That was his plea and he doesn’t get to now say I was just pleading no
2
Respondent’s criminal trial is pending.
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contest that the allegations were made. That doesn’t work-it doesn’t work that way
Counsel. These allegations are-he’s bound by them because he pled [] no contest
to them. The Court could obtain jurisdiction based up on them and he can’t now
refute them. This hearing is a dispositional hearing based on that no contest plea
and the sole purpose of testimony here today is on whether or not it’s in the best
interest of the minor children to actually terminate his-and, also for me to make a
decision based on the allegations that were made, that he pled no contest to, and
whether there’s clear and convincing evidence that the statutory basis for
termination of his parental rights have been met.
Although the trial court stated that it needed to address the statutory grounds and best interests, it
then proceeded to conclude that the testimony presented that day, “if any, is solely based on
whether it’s in the best interest of the kids to actually terminate.” The trial court also concluded
that respondent’s Fifth Amendment rights had no impact because of the higher “standard of proof”
required in the criminal case. The court reiterated during the hearing that the only testimony that
would be taken addressed “just the best interest of the kids[.]” Petitioner presented two witnesses
addressing the filing of the petition and the children’s wishes regarding termination of respondent’s
parental rights as expressed in letters that they wrote. Respondent was allowed to testify3 solely
regarding the nature of his relationship with the children and the activities they participated in as
a family. At the close of the hearing, the court found that termination of respondent’s parental
rights was in the children’s best interests, and therefore, terminated respondent’s parental rights to
the children.
II. STANDARDS OF REVIEW
The interpretation and application of statutes and court rules is reviewed de novo. In re
Ferranti, 504 Mich 1, 14; 934 NW2d 610 (2019). De novo review means the appellate court may
address the issue independently without deference to the lower court decision. Id. When the trial
court renders factual findings, appellate review is for clear error. In re White, 303 Mich App 701,
709; 846 NW2d 61 (2014). A trial court’s factual findings are clearly erroneous if there is
evidentiary support, but the appellate court is definitely and firmly convinced that a mistake was
made. Id. at 709-710. “Whether a respondent in a termination case was afforded due process is a
question of law subject to a de novo standard of review.” In re Bell, ___ Mich App ___, ___; ___
NW2d ___ (2022) (Docket No. 360191); slip op at 3 (citations omitted).
III. ANALYSIS
Respondent alleges that the trial court erred and violated his right to due process by relying
solely on his no contest plea at the adjudication phase to conclude that the statutory grounds for
termination were proven by clear and convincing evidence. We agree.
Following an investigation, the DHHS may file a petition requesting that the court take
jurisdiction over a child. In re Mota, 334 Mich App 300, 312; 964 NW2d 881 (2020). The petition
3
Before respondent testified, his counsel clarified with the trial court that if respondent did not
address the allegations pertaining to ETR, petitioner could not question him regarding that issue.
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must delineate essential facts that, if proven, would allow the court to assume and exercise
jurisdiction over the child. Id. (citations omitted). If the petition is authorized, the adjudication
phase occurs. Id.Child protective proceedings are comprised of two phases, the adjudicative phase and the
dispositional phase. In re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014). Generally, during
the adjudicative phase, the court determines whether it can take jurisdiction over the child in the
first place. Id. Jurisdiction may be acquired in two ways. The parent may plead to the allegations
in a jurisdictional petition, or a party may demand a trial before a judge or jury to contest the
allegations. In re Thompson, 318 Mich App 375, 378; 897 NW2d 758 (2016). Once jurisdiction
is taken by the court, it determines what action will ensure the child’s safety and well-being during
the dispositional phase. Sanders, 495 Mich at 404.
If a trial is held regarding adjudication, the respondent is entitled to a determination
of the facts by the jury or judge, the rules of evidence apply, and jurisdiction must
be established by a preponderance of the evidence. The dispositional phase
involves a determination of what action, if any, will be taken on behalf of the child.
Unlike the adjudicative [trial], at the initial dispositional hearing the respondent is
not entitled to a jury determination of the facts and, generally, the Michigan Rules
of Evidence do not apply, so all relevant and material evidence is admissible. [In
re Mota, 334 Mich App at 312-313.]
Once an adjudicative proceeding is conducted, the court may immediately hold a dispositional
hearing. In re Thompson, 318 Mich App at 379. However, the two proceedings may not be
converged such that there is no distinction between the two. Id.By statute, the trial court is authorized to conduct adjudicative and dispositional
proceedings. See Sanders, 495 Mich at 404; see also MCL 712a.2(b). MCL 712A.2(b) provides,
in pertinent part:
Jurisdiction in proceedings concerning a juvenile under 18 years of age found
within the county:
(1) Whose parent or other person legally responsible for the care and maintenance
of the juvenile, when able to do so, neglects or refuses to provide proper or
necessary support, education, medical, surgical, or other care necessary for his or
her health or morals, who is subject to a substantial risk of harm to his or her mental
well-being, who is abandoned by his or her parents, guardian, or other custodian,
or who is without proper custody or guardianship . . . .
Thus, by statute, the court may acquire jurisdiction over minor children when a respondent, being
legally responsible for their care and maintenance “neglects or refuses to provide proper or
necessary support, education, medical, surgical, or other care necessary for his or her health or
morals[.]” It is important to highlight that jurisdiction must be established by a preponderance of
the evidence. In re Mota, 334 Mich App at 312-313. The trial court’s factual findings are reviewed
for clear error. In re White, 303 Mich App at 709. As stated, a trial court’s factual findings are
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clearly erroneous if there is evidentiary support, but the appellate court is definitely and firmly
convinced that a mistake was made. Id. at 709-710.
But to terminate parental rights, a trial court must find that at least one of the statutory
grounds for termination delineated in MCL 712A.19b(3) has been proved by clear and convincing
evidence. In re Brown/Kindle/Muhammad, 305 Mich App 623, 635; 853 NW2d 459 (2014). In
civil cases, the clear and convincing evidence standard is the most demanding standard applied.
Shahid v Dep’t of Health & Human Servs, 333 Mich App 267, 273; 963 NW2d 638 (2020). Clear
and convincing evidence is evidence that creates in the view of the trier of fact a firm belief or
conviction pertaining to the truth of the allegations sought to be established, “evidence so clear,
direct and weighty and convincing so as to enable [the factfinder] to come to a clear conviction,
without hesitancy, of the truth of the precise facts in issue.” In re Martin, 450 Mich 204, 227; 538
NW2d 399 (1995) (citation omitted).
Although the trial court stated that it would address the satisfaction of the statutory grounds
for termination and determine the bests interests of the children, it expressly limited the proofs at
the dispositional hearing to best interests. In doing so, the trial court effectively held that the no
contest plea was conclusive evidence to support the statutory grounds for termination. However,
the plain language of the court rule, see In re Ferranti, 504 Mich at 14, governing no contest pleas
does not give the plea incontestable effect.
MCR 3.971 addresses the acceptance of a plea of no contest as voluntary and accurate and
provides, in relevant part:
(B) Advice of Rights and Possible Disposition. Before accepting a plea
of admission or plea of no contest, the court must advise the respondent on the
record or in a writing that is made a part of the file:
(1) of the allegations in the petition;
(2) of the right to an attorney, if respondent is without an attorney;
(3) that, if the court accepts the plea, the respondent will give up the rights
to
(a) trial by a judge or trial by a jury,
(b) have the petitioner prove the allegations in the petition by a
preponderance of the evidence,
(c) have witnesses against the respondent appear and testify under oath at
the trial,
(d) cross-examine witnesses, and
(e) have the court subpoena any witnesses the respondent believes could
give testimony in the respondent's favor;
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(4) of the consequences of the plea, including that the plea can later be used
as evidence in a proceeding to terminate parental rights if the respondent is a
parent.
* * *
(D) Voluntary, Accurate Plea.
(1) Voluntary Plea. The court shall not accept a plea of admission or of no
contest without satisfying itself that the plea is knowingly, understandingly, and
voluntarily made.
(2) Accurate Plea. The court shall not accept a plea of admission or of no
contest without establishing support for a finding that one or more of the statutory
grounds alleged in the petition are true, preferably by questioning the respondent
unless the offer is to plead no contest. If the plea is no contest, the court shall not
question the respondent, but, by some other means, shall obtain support for a
finding that one or more of the statutory grounds alleged in the petition are true.
The court shall state why a plea of no contest is appropriate. [Italics emphasis
added.]
The general rule allows for the dispositional hearing to be resolved on all relevant and
material evidence regardless of the application of the Michigan Court Rules. In re Mota, 334 Mich
App at 312-313. However, when the termination of parental rights is sought at the initial
dispositional hearing, the court must find that the statutory grounds for termination are premised
on clear and convincing legally admissible evidence. In re Utrera, 281 Mich App 1, 16-17; 761
NW2d 253 (2008). MCR 3.977(E) provides:
(E) Termination of Parental Rights at the Initial Disposition. The court
shall order termination of the parental rights of a respondent at the initial
dispositional hearing held pursuant to MCR 3.973, and shall order that additional
efforts for reunification of the child with the respondent shall not be made, if
(1) the original, or amended, petition contains a request for termination;
(2) at the trial or plea proceedings, the trier of fact finds by a preponderance
of the evidence that one or more of the grounds for assumption of jurisdiction over
the child under MCL 712A.2(b) have been established;
(3) at the initial disposition hearing, the court finds on the basis of clear and
convincing legally admissible evidence that had been introduced at the trial or plea
proceedings, or that is introduced at the dispositional hearing, that one or more facts
alleged in the petition:
(a) are true, and
(b) establish grounds for termination of parental rights under
MCL 712A.19b(3)(a), (b), (d), (e), (f), (g), (h), (i), (j), (k), (l), or (m);
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(4) termination of parental rights is in the child’s best interests.
In this case, respondent entered a no contest plea at the adjudication phase. There is no
dispute that, in accepting the plea, the court complied with MCR 3.971(B)(4) and advised
respondent “of the consequences of the plea, including that the plea can later be used as evidence
in a proceeding to terminate parental rights if the respondent is a parent.” Contrary to petitioner’s
argument, however, respondent is not challenging the validity of his plea4 at the adjudication
phase; rather, he is challenging the effect of that plea at the dispositional phase and whether he was
afforded due process. Further, respondent protests the fact that the trial court accepted his plea as
clear and convincing legally admissible evidence to support the statutory grounds for termination
of parental rights. Indeed, respondent’s no contest plea to allow the court to obtain jurisdiction
merely satisfied the preponderance of the evidence standard. In re Mota, 334 Mich App at 312-
313 (jurisdiction must be established by a preponderance of the evidence). When respondent
pleaded no contest to contents of the petition, he was advised that his plea could be used as
evidence against him later in the proceedings. However, he was not apprised, and the court rule
does not provide, that the preponderance of the evidence of his plea used to support the assumption
of jurisdiction would be given conclusive effect and deemed to be clear and convincing legally
admissible evidence to demonstrate the statutory grounds to terminate his parental rights.
Petitioner was not alleviated of its burden to show that the statutory grounds for termination of
respondent’s parental rights were demonstrated by clear and convincing legally admissible
evidence. Moreover, the trial court expressly denied respondent the opportunity to present any
evidence at the initial dispositional hearing pertaining to statutory grounds, concluding that it
would only entertain testimony addressing best interests of the children. Thus, the import or
conclusive effect given to the no contest plea and the failure to allow the presentation of additional
evidence addressing the statutory grounds for termination deprived respondent of due process.
Accordingly, we vacate the trial court’s order terminating respondent’s parental rights to
his minor children and remand for further proceedings, including a dispositional hearing at which
the trial court should allow the parties to present evidence relevant to the statutory grounds for
termination and make findings regarding the existence of a statutory ground for termination on the
4
We note that respondent did not seek to withdraw his plea. Indeed, the time for filing an appeal
of the issue had passed, but the dispute regarding the nature and extent of the allegation to which
respondent pleaded no contest did not arise until a discussion occurred at the initial dispositional
hearing. Furthermore, petitioner did not assert that the proofs to support the bindover on the
criminal charges, only probable cause, could be considered for purposes of establishing the
statutory grounds for termination.
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basis of legally admissible evidence. Because ETR has since reached the age of 18 years,
proceedings on remand are limited to JMR only.5
Vacated and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Anica Letica
/s/ Deborah A. Servitto
/s/ Noah P. Hood
5
Given our resolution of this issue, we do not reach respondent’s second issue on appeal
concerning the trial court’s best interest determination.
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